Dr. Meghsham S/O Pramodrao ... vs The State Of Maharashtra, Thr. Pso ...
2021 Latest Caselaw 11634 Bom

                                                    1          Cri.APL No.807.21-J.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR

             CRIMINAL APPLICATION (APL) NO. 807 OF 2021

 Dr. Meghsham S/o. Pramodrao Anjankar,
 Aged about 39 years,
 Occupation : Assistant Professor,
 R/o. Flat No.101, Govind Vatika Apartment,
 New Subhedar Layout, Nagpur.                                    ......APPLICANT

                      ... VERSUS ...

 1.     The State of Maharashtra,
        Through Police Station Officer,
        Police Station, Nandanwan,
        Nagpur City, Nagpur.

 2.     Ku. Shital D/o. Ramsevak Kushwah,
        Aged about 16 years, through her
        natural guardian i.e. mother namely
        Smt. Sunanda Wd/o. Ramsevak Kushwah,
        Aged about 42 years,
        Occupation - Household,
        R/o. Plot No.412, Near N.I.T. Ground,
        Darshan Colony, Nagpur.               ......NON-APPLICANTS
 -------------------------------------------------------------------------------------------
 Shri N. B. Kalwaghe, Advocate for the Applicant.
 Shri V. A. Thakare, Additional Public Prosecutor for the Non-applicant No.1.
 Shri A. Y. Kamble and Shri V. N. Patre, Advocate for the Non-applicant No.2.
 -------------------------------------------------------------------------------------------
          CORAM :          V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATE : 24.08.2021.

ORAL JUDGMENT : (PER AMIT B. BORKAR, J.)

1. Heard.

2. Rule. Rule is made returnable forthwith.

3. By this application under Section 482 of the Code of

Criminal Procedure, the applicant is challenging registration of the

First Information Report No.370/2021 dated 08.07.2021

registered with the non-applicant No.1 - Police Station for the

offences punishable under Section 354 of the Indian Penal Code

and Section 8 of the Protection of Children from Sexual Offences

Act, 2012.

4. The First Information Report came to be registered by

the non-applicant No.2 represented through her mother stating

that on 05.07.2021 she had been to Radhika Clinic which is being

run by Dr. Ravindra Gundalwar due to pain in abdomen and

Nausea with mild fever. Dr. Gundalwar prescribed her medicine

and asked her to revisit, if pain continues. Therefore, on

07.07.2021, the non-applicant No.2 again revisited the clinic with

her elder sister. It is alleged that at that time, one Ayurvedic

doctor attended her and checked her. The Non-applicant No.2

therefore, lodged report with the non-applicant No.1 - Police

Station for offence punishable under Section 354 of the Indian

Penal Code and Section 8 of the Protection of Children from

Sexual Offences Act, 2012 on 08.07.2021.

5. The applicant was allegedly unaware of registration of

the First Information Report and came to be arrested on

09.07.2021 and was released on regular bail on 12.07.2021.

6. During the pendency of the investigation, the applicant

and the mother of the victim have resolved their dispute. The

applicant has therefore, filed present application challenging

registration of the First Information Report and continuation of

the investigation against the applicant.

7. The non-applicant No.2 has filed affidavit before this

Court dated 31.07.2021 affirmed by the mother of the victim. It is

stated in the said reply that the First Information Report was

lodged due to misunderstanding. It is stated that the

non-applicant No.2 after recovery from the pain and illness

realised her mistake and therefore, she told the same to her

mother. It is stated that her mother on behalf of the victim has

filed affidavit stating that the applicant never misbehaved with her

daughter. The non-applicant No.2 and her mother have realised

the mistake and therefore, they are withdrawing all the allegations

made against the applicant.

8. We have carefully considered the allegations in the First

Information Report and the memo of application. It is undisputed

that the applicant is a medical practitioner. At this stage, it is

necessary to note Section 41 of the Protection of Children from

Sexual Offeces Act, 2012, which read as under :

"Section 41 - Provisions of sections 3 to 13 not to apply in certain cases. - The provisions of sections 3 to 13 (both inclusive) shall not apply in case of medical examination or medical treatment of a child when such medical examination or medical treatment is undertaken with the consent of his parents or guardian."

9. On perusal of the provisions of Section 41 and on

consideration of the First Information Report lodged against the

applicant, it appears that the incident mentioned in the First

Information Report making allegations against the applicant was

due to misunderstanding. Since, the applicant is medical

practitioner and had medically examined the victim, provisions of

Section 3 to 13 of the Protection of Children from Sexual Offences

Act, 2012 shall not be applicable. Therefore, the ingredients of

the offence under the provisions of the Protection of Children from

Sexual Offences Act, 2012 are not fulfilled.

10. The next offence alleged against the applicant is under

Section 354 of the Indian Penal Code. On consideration of the

affidavit filed by the non-applicant No.2, we are satisfied that the

First Information Report came to be registered against the

applicant due to misunderstanding.

11. Today, the mother of the victim is present in the Court.

She categorically stated before the Court that there is no pressure

or coercion on her to resolve the dispute with the applicant. She

has also stated that she has not been offered any money for

settling the matter with the applicant. Therefore, in view of the

affidavit filed by the non-applicant No.2, we are satisfied that

there is no impediment in quashing the First Information Report

against the applicant.

12. The Hon'ble Apex Court in the case of Narinder Singh &

others Vs. State of Punjab & anr. reported in (2014) AIR SCW

2065. The decision of the Hon'ble Apex Court makes it clear that

the Court cannot declare to quash the First Information Report

merely because the First Information Report incorporates a

particular provision which is a serious offence or offence against

society. The Court has to make an endeavour to find out whether

the information in the First Information Report indeed discloses

the ingredients of such offence and the Court can accept the

settlement and quash the report/charge-sheet only after the Court

is of the opinion that such an offence is unnecessarily incorporated

in the First Information Report/charge-sheet.

13. From the perusal of the First Information Report and the

material produced in the Court, we are satisfied that the

ingredients of the offence under Section 354 of the Indian Penal

Code and Section 8 of the Protection of Children from Sexual

Offences Act, 2012, are not fulfilled. Since the applicant and the

non-applicant No.2 have mutually resolved their dispute, chances

of conviction are bleak.

14. In view of the Section 41 of the Protection of Children

from Sexual Offences Act, 2012, ratio laid down by the Hon'ble

Apex Court in the case of Narinder Singh (supra) and the affidavit

filed by the non-applicant No.2 dated 31.07.2021, we pass the

following order :

The First Information Report No.370/2021 dated

08.07.2021 registered with the non-applicant No.1 - Police Station

for the offence punishable under Section 354 of the Indian Penal

Code and Section 8 of the Protection of Children from Sexual

Offences Act, 2012, is quashed and set aside against the applicant.

15. Rule is made absolute in the above terms. Pending

application(s), if any, stand(s) disposed of.

                                  JUDGE                                    JUDGE



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